Best Practices Cumulative Update

Beginning with the October 30, 2001 Meeting of the Conference of Civil
Presiding Judges, through the June 25, 2002 Meeting

The following is a cumulative listing of the
results of discussions by the Conference of Civil Presiding Judges of a variety
of civil best practices issues and questions that have been presented to the
Conference by members of the bar, civil judges, and civil court staff. The
items listed below represent the Conference of Civil Presiding Judges
consensus as to how the various issues and questions should be handled
statewide, subject to the individual judges discretion exercised within
the context of the facts and legal issues presented in specific cases. The
items listed below do not carry the weight of court rules or administrative
directives; they are not precedential and should not be cited; they are merely
intended as guidelines to assist the court and the bar as civil best practices
are implemented statewide. This listing, which begins with issues discussed
at the October 30, 2001 meeting of the Conference of Civil Presiding Judges,
will be updated periodically.

 In developing the track system for
civil cases, it was the contemplation of the Conference of Civil Presiding
Judges that track changes occur under two circumstances only: (1) when a case
is erroneously marked by an attorney as a certain case type on the CIS or
erroneously entered by court staff as a certain case type into the automated
system (ACMS); and (2) when, during the course of discovery, the very nature of
the case changes, as when a case originally filed as an auto negligence matter
(Track II) is revealed in discovery to be primarily a medical malpractice or
product liability case (Track III). A track

assignment will not be changed because
additional discovery is needed or additional parties are added or because the
case requires judicial management. (12/4/01 meeting of
the Conference of Civil Presiding Judges)

N.B. A rule amendment to this effect has
been proposed by the Civil Practice Committee and is pending before the Supreme
Court.

Section 2.Judicial Case
Management/Calendaring

 In accordance with the Supreme
Courts rule relaxation Order of 7/2/01, any application made to the court
after the discovery end date shall be made to the Civil Presiding Judge or his
or her designee. Thus, the Civil Presiding Judge can designate himself or
herself to handle all motions to restore pleadings (or all motions of any other
type) when those motions are made after the end of the discovery period.
(1/16/02 meeting of the Conference of Civil Presiding
Judges)

 Convenience of the parties should be
a critical element in scheduling proofs and friendlies. As these are not
pretrial proceedings, there is generally no need for the pretrial judge to
handle them. Accordingly, proofs and friendlies may be scheduled before the
pretrial judge or any available judge, at the vicinages option. The
exception to this approach is when a settlement involving a minor or mentally
incapacitated person occurs after substantial judicial involvement in the case.
In such instances, either the pretrial judge or the settlement judge should
handle the friendly. (5/14/02 and 6/25/02 meetings of the
Conference of Civil Presiding Judges; supersedes Cumulative Update entry on
this issue from the 7/26/00 and 9/26/01 meetings of the Conference of Civil
Presiding Judges).

Section 3.Rule 1:13-7
Dismissal

 There are reported to be substantial
differences among vicinages, and even among judges within a vicinage, as to
whether to permit reinstatement of a complaint, dismissed pursuant to R.
1:13-7, when service is effected after the matter is dismissed. Some vicinages
(or judges) will allow reinstatement in such circumstances, whereas others
require the complaint to be reinstated first and then served. The position of
the Conference is that service of the dismissed complaint, as a prerequisite to
vacating the dismissal and restoring the pleading, is permissible and
consistent with civil best practices. This position is supported by Stanley
v. Great Gorge Country Club (decided 4/13/02; approved for publication
6/13/02). (6/25/02 meeting of the Conference of Civil
Presiding Judges).

Section 4.Inactive Cases

Section 5.Discovery

 When cases are consolidated, the
consolidation order should specify the discovery end date that will apply to
all cases within the consolidation. If the consolidation order does not specify
a discovery end date, the most distant discovery end date among the cases
consolidated will apply to all cases within the consolidation. (10/30/01 meeting of the Conference of Civil Presiding
Judges).

 As of mid-November 2001, the
discovery end date for all pending civil cases will be posted on the
Judiciarys website (www.judiciary.state.nj.us). The information posted on
the website will be updated nightly from the Automated Case Management System
(ACMS). (10/30/01 meeting of the Conference of Civil
Presiding Judges).

 It appears that some attorneys are
making, and some judges are granting, motions brought under R. 4:23-5 to
compel more specific answers to interrogatories. The Conference agreed that
this is not an appropriate application of R. 4:23-5. Such motions should
be brought pursuant to R. 4:17-5. (10/30/01 meeting
of the Conference of Civil Presiding Judges).

 Rule 4:23-5(a) requires that a
party moving to strike or dismiss the adversarys pleading must certify
that he or she is not in default on any discovery obligations owed to the
delinquent party. The question was raised whether a motion to dismiss for
failure to attend an IME might be denied if the movant has not yet answered the
delinquent partys interrogatories, even if the time for answering has not
yet run. The consensus of the Conference was that, as long as one party is not
delinquent in providing discovery, i.e., the time period within which
the discovery must be provided has not yet run, that party should be able to
obtain relief under R. 4:23-5. (10/30/01 meeting of
the Conference of Civil Presiding Judges).

 The judge has the inherent authority,
in an order granting a good cause discovery extension, to condition
any further extensions, even if sought prior to the discovery end date, on a
showing of exceptional circumstances. (1/16/02 meeting of
the Conference of Civil Presiding Judges).

 Once a stay order is entered into the
Automated Case Management System as to a specific case, the system
automatically extends the discovery end date by the number of days of the stay.
(2/26/02 meeting of the Conference of Civil Presiding
Judges).

Section 6.Motions

 As a matter of uniform practice, if
an in limine motion is to be heard by the trial judge in the context of
the trial, it need not be entered into ACMS; there should be no fee paid; no
return date need be assigned; the motion papers should simply be placed into
the file jacket for the trial judges review and handling; and the motion
will become part of the trial record. If, however, the motion is submitted with
a return date in advance of the trial date, it should be handled as any other
motion  that is, it should be accompanied by a $15 fee and entered into
ACMS. (10/30/01 meeting of the Conference of Civil
Presiding Judges).

 Too often, motions and orders refer
generally to a partys failure to provide discovery, without indicating
what specific discovery is at issue. This is a problem as the adversary may not
be sure what the discovery is that must be provided, and it becomes difficult
for the court to deal with subsequent motions (e.g., to reinstate) if
the initial order is not specific as to the original deficiency. If a
particular attorney only occasionally fails to provide the necessary
specificity in the motion and order, the judges law clerk should call to
obtain the information. If, however, an attorney routinely fails to provide
specific information as to the delinquent discovery, the motion should be
denied and the reason provided in the order. (5/14/02
meeting of the Conference of Civil Presiding Judges).

 An attorney inquired whether, in
deciding a motion to restore a stricken pleading upon the provision of answers
to interrogatories, the court must determine if the specific interrogatory
answers are complete and responsive if the adversary alleges they are not. The
position of the Conference is that Adedoyin v. ARC of Morris County, 325
N.J. Super. 173 (App. Div. 1999) clearly provides that the answer to
this question is yes.

N.B. By Supreme Court Order of 7/2/01,
relaxing and supplementing Rules 4:25-4 and 4:36-2 and Appendix XXIV of
the Rules of Court (see below), filing and serving of the Trial Information
Statement (TIS) are no longer required.

Section 8.Complementary Dispute
Resolution (CDR)

Arbitration

 Pursuant to Rules 4:21A-(d)
and 4:36-3(b), once a case is scheduled for arbitration, there should be no
adjournments barring exceptional circumstances. This requires a judicial
determination; the Arbitration Administrator may not adjourn cases for
incomplete discovery. If, however, a judge extends the discovery end date after
an arbitration hearing has already been scheduled, the order extending
discovery should specify whether the arbitration date is to remain fixed or be
rescheduled. (The judge may determine to allow additional discovery without
changing the date of the arbitration hearing.) (10/30/01
meeting of the Conference of Civil Presiding Judges).

 The issue was raised as to whether a
case may be scheduled before discovery has ended for arbitration or
trial to occur after the discovery end date (DED). Rule
4:21A-1(d) requires 45 days notice of an arbitration hearing; Rule
4:36-3(a) requires eight weeks notice of trial. Can this notice period start to
run prior to the DED?

The Conference agreed, that, pursuant to
Section 6 of the Report of the Conference of Civil Presiding Judges on
Standardization and Best Practices, the scheduling of a case for
arbitration or trial should not occur until the date the discovery period ends,
at the earliest. (2/26/02 meeting of the Conference of
Civil Presiding Judges).

 The Conference considered a variety
of issues relating to arbitrating cases in which a defendants answer had
been stricken for failure to provide discovery or in which a defendant, who had
previously answered or appeared in the case, is in default, and made the
following determinations:

if there is but one defendant and
that defendants answer has been stricken or the defendant is in default,
the case should not be scheduled for arbitration;

if there are multiple defendants
and one or more (but not all) are in default or have had their answers
stricken for failure to provide discovery:

the case should be scheduled for
arbitration;

the stricken or defaulted
defendant(s) should receive notice of the arbitration hearing;

the stricken or defaulted
defendant(s) should be allowed to participate in the proceeding as they would
be allowed to participate at trial, that is, they may cross-examine but may not
present affirmative witnesses;

the stricken or defaulted
defendant(s) that participate in the arbitration hearing are not entitled to a
trial de novo unless that party has moved to vacate the dismissal or
default and that motion has been granted before the time to file the trial
de novo has run;

if another party files for a trial
de novo, the defendant(s) in default or whose answer(s) have been
stricken should get notice and may participate in the trial; and

the defendant(s) in default or
whose answer(s) have been stricken are bound if the arbitration award is
confirmed.(5/14/02 and 6/25/02 meetings of the Conference
of Civil Presiding Judges).

Section 9.Settlement Events

Section 10.Calendar Practices/Trial
Calls

Section 11.Trial Adjournments

Section 12.Trial Management

 Rule 4:14-9(f) requires that
objections to the videotaped testimony of a treating physician and/or expert be
presented to the court within 30 days following completion of the deposition,
and the comments indicate that the failure to seek such a pretrial ruling will
be deemed a waiver of any objection. The rationale behind the rule is that
these objections should be dealt with pretrial so as not to delay the trial,
which would be the result if the objections were presented after the trial
started. Some judges, however, are apparently taking the position that such
motions are actually in limine motions and are refusing to hear them,
directing instead that the objections are more properly handled by the trial
judge. Such a position may have some validity, but it seems to run afoul of the
rule and would result in trial delays.

The Conference agreed that there should be a
uniform approach to such motions and that the dictates of R. 4:14-9(f)
should be followed, that is, objections to the videotaped testimony should be
made and dealt with pretrial. This approach, however, does not apply to the
videotaped testimony of experts taken pursuant to R. 4:36-3.
(2/26/02 meeting of the Conference of Civil Presiding
Judges).